Split 9th Circuit panel stays injunction against DADT

by on November 2, 2010  •  In Constitutional law, Military

After taking almost two weeks to decide and with one judge dissenting, a panel of Ninth Circuit Court of Appeals judges has granted a stay pending appeal of the injunction against the Don't Ask Don't Tell policy issued in the Log Cabin Republicans case. Although the policy can again be enforced, the court's actions sent yet another signal that legal support for it is dwindling. Normally it would take the court about a minute to stop an injunction against a federal statute that previous courts have upheld multiple times. Recall the same court's reaction to a similar motion for a stay of Judge Walker's ruling against Prop 8 – the stay was granted in less than a day.

The two judges who formed the majority wrote that "there are three reasons that persuade us to grant a stay pending appeal."

The reasons included that "Acts of Congress are presumptively constitutional," that "'judicial deference . . . is at its apogee' when Congress legislates under its authority to raise and support armies" and that "the district court’s analysis and conclusions are arguably at odds with the decisions of at least four other Circuit Courts of Appeal" [citing Cook v. Gates in the 1st Circuit; Able v. U.S. in the 2d Circuit; Richenberg v. Perry in the 8th Circuit; and Thomasson v. Perry in the 4th Cir.].

We … conclude that the public interest in ensuring orderly change of this magnitude in the military – if that is what is to happen – strongly militates in favor of a stay. Furthermore, if the administration is successful in persuading Congress to eliminate [DADT], this case and controversy will become moot.

In dissenting, Judge William Fletcher wrote that he "would allow the district court's order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military [under DADT] during the pendency of the appeal." Fletcher would have let the military officially continue the DADT policy (as to recruiting, for example), but would have halted discharges. Judge Fletcher also stated that he would have granted oral argument on the stay motion, but the court rules require that at least two judges request oral argument on a motion before one will be scheduled.

Arguably, the Gates memorandum freezing DADT discharges unless they are approved by a new civilian-dominated process achieves what Judge Fletcher would have ordered.

In a separate scheduling order, the court set deadlines for the full briefing of the case (no.10-56634). The government will file its appeal brief by Monday, Jan. 24, 2011. Attorneys for LCR are required to file their response by Tuesday, Feb. 22, and the government's reply is required to be filed by 14 days following the LCR filing. 

With luck, the policy will be dead before the first brief is due.


4 Responses to Split 9th Circuit panel stays injunction against DADT

  1. Jay November 2, 2010 at 9:06 AM

    I am interested as to why you believe the Gates memorandum effectively ends the discharges. In issuing the memorandum Gates pointedly said that the purpose of the change in procedure had nothing to do with either increasing or decreasing the number of discharges. Do you know something that I don’t? And is there some way to find out whether and how many discharges under DADT have been made this year and since the new procedure has gone into effect?

    I realize that the Obama administration wants us to see the memo as a big change that gives a wink and nod that DADT is really over except for the shouting. But I am skeptical both as to whether this change is anything more than a publicity stunt and as to whether Obama will be able to repeal DADT legislatively. I suspect that when he fails to repeal it legislatively in the lame-duck session, he will finally use his powers as Commander in Chief to end the policy. Then his defenders will talk about how brilliant and decisive he is for doing what he should have done 18 months ago.

  2. Jay November 2, 2010 at 11:07 AM

    One more question, if I may: Is it right to assume that the same panel that considered the stay will be considering the appeal itself?

  3. Nan Hunter November 2, 2010 at 10:16 PM

    My best guess is that the administration is using the Gates memorandum as a way to try to get ahead of a curve that they have failed so far to control. It allows them to keep all their options open, essentially insuring that political appointees can shut down DADT discharges without having to say so, or, alternatively, can allow some to go forward. (SLDN keeps track of how many DADT discharges occur, and I’m sure they will monitor that closely now.) The White House is still banking on legislative repeal, and the new DoD policy can freeze discharges until there is a Senate vote.

    If they fail in the Senate, what will their next move be? I don’t have a crystal ball, but I think they will use the Pentagon report to justify executive action to more formally stop the discharges, although they cannot eliminate the law.

    As for the Ninth Circuit, the panel that ruled on the stay will NOT be the same trio of judges that decides the case. We won’t know more about the latter panel until a week before oral argument, which will be months away unless the LCR lawyers gets the case put on an expedited schedule.

  4. Jay November 3, 2010 at 10:11 AM

    Thanks very much!!!!

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